Direct Payments

The relevant parts of the legislation are to be found at sections 12,15 and 16 of the 2013 Act and the more detailed operation is described in the Self-directed Support (Direct Payments) (Scotland) Regulations 2014/25


Direct payments under Option 1 can be means tested by the local authority. The details of this are in Regulation 3

           i)      Means test must be done before direct payment made or                                                     within a year afterwards

           ii)     The person receiving support may need to contribute to the direct payment

           iii)     They may need to repay some or all of a Direct Payment to reflect the                                  contribution calculated after a payment OR A LESSER AMOUNT 

           iv)     there is discretion to waive the contribution altogether if a person is only                              notified of it after they have spent the payment?

           v)      Does not apply to Carers (reg 3A)


There should be a provision for contributions to be paid in instalments (Reg 4)

Additionally they can be paid (in full or in part) direct to a third party on a supported person’s request if the local authority is satisfied the user retains control over spending (Reg 5)


Termination of a Direct Payment        

Direct Payments can be terminated (Reg 6) where:

  • the person receiving them has become ineligible to receive direct payments
  • the direct payment has been used (wholly or partly) for some purpose other than to secure the provision of the support to which it relates
  • the local authority considers on reasonable grounds that the direct payment user has breached the criminal law or  a civil law obligation in relation to the support to which      the direct payment relates
  • the direct payment has been used (wholly or partly) to secure the provision of support by a family member where this is not permitted.

Before terminating the LA must give notice of reasons and the date when the payment will be terminated

When deciding when payment will stop the LA has a duty to consider any contractual obligations and the time necessary to put in place alternative arrangements for care

Notice must be in writing and any other form appropriate


Ineligibility for direct payments

The following categories of persons are not eligible for Option 1:

  • People provided with residential accommodation or residential care with nursing  (Reg 10)
  • LA not required to offer direct payment if user has had direct payment previously terminated under Reg 6 or is likely to put  safety of supported person at risk (Reg 11)


N.B. Note the difference here between complete ineligibility and no duty to offer (this would still allow LA to offer direct payment if they chose to)


The Local authority has the power to recover direct payment made where it considers the payment has been used for another purpose or there has been a contravention of the Regulations

A person can be asked to repay a direct payment of such part as local authority considers appropriate

There is a Right to request review of the decision not to offer direct payment option on the basis that there has been a material change of circumstances such that the original reason no longer applies (s12)


Last modified: Thursday, 30 January 2020, 9:35 PM